We now have an innovation in executive power. During the Bush Administration, mid-level functionaries would be found to write legal justifications for waging war, committing acts of torture, or what have you. Now, during the Obama Administration, the top lawyers are free to give their considered opinion on these issues. But the President will simply overrule them, as Charlie Savage writes today:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Let’s break this down. I saw Charlie Savage when he was on a book tour a few years ago, and he accurately described the Office of Legal Counsel as the Supreme Court of the executive branch. These are legally binding decisions that OLC makes, and while Presidents can override them, it pretty much never happens. This is quite literally the equivalent of Andrew Jackson’s statement to Justice Marshall, “John Marshall has made his decision: now let him enforce it!”

Just imagine if George Bush had waged a war that his own Attorney General, OLC Chief, and DoD General Counsel all insisted was illegal (and did so by pointing to the fact that his White House counsel Alberto Gonzales and a legal adviser at State agreed with him). One need not imagine this, though, because there is very telling actual parallel to this lawless episode [...]

Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush — wanting to avoid that kind of scandal in an election year — agreed to “re-fashion” the program into something those DOJ lawyers could approve (the “re-fashioned” program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).

That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).

I would imagine that Dawn Johnsen, if she were ever confirmed to run OLC, might have resigned, but the decision clearly would have been the same. I imagine, however, that she also would have delivered a more formal opinion, unlike the way Savage described this, as how OLC was “asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies.”

Glenn’s obviously all over this, and he characterized the decision as a pure power grab, when the Congress would probably have given sanction to the Libyan operation anyway, especially if they merely followed the guidelines. This is about to explode, in my view.

“Look,” said the little boy in the crowd loudly and animatedly, as he pointed to Barack Obama, who was exhibiting his typical blank stare, “the President has no mind!” An embarrassed hush descended upon the erstwhile frenzied crowd gawking at the “First Family.”

And how the liberal Dems would be shouting for impeachment if this were W! Since it’s Obama, it’s okey dokey artichokey.

Of, course this establishes dangerous precedents for incoming future Presidents of any party.

Go ahead, Dennis, do it. File articles of impeachment and schism the real Democrats off from the rest of the Party. You know you want to. You’ve had a great run up to now, and who really cares if you lose your Congressional seat in the future as a result of doing what’s right? You can then be a leader of the new Party we are all dying to see rise up from the ashes of the Democrats.

My sense is that it’s an outer boundary in service of the military and contractor commerce. If we can stay engaged in Libya, then we can stay in Yemen. If we can stay in Yemen, then we can stay in Pakistan. If we can stay in Pakistan then we can stay in Iraq. If we can stay in Iraq then we can stay in Afghanistan. The more the frog boils, the more Congressional BS is necessary to peel the onion of peace, which is just unacceptable to the recipients of a huge portion of tax revenue expenditures. Follow the money.

Isn’t Obama the greatest legal mind ever produced in the U.S.? In a related story workers at a Target store in New York have rejected joining a union in the false belief that one day they too will be rich beyond their wildest imagination.

Obama the warmongering chickenhawk on one hand says that computer hacking can be an act of war to be used as an excuse for bombing another country, but when it comes to actually getting Congressional authorization the United States doing something like 9/11 or Pearl Harbor isn’t considered hostile.

Here’s the arch-hypocrite Harold Koh defining “armed conflict” when it comes to Al Qaeda, yet this is precisely what we are doing in Libya – we attacked Libya and we continue to attack Libya…and Al Qaeda hasn’t attacked the United States remotely as much as we’ve attacked Libya!:
“As recent events have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.”http://www.state.gov/s/l/releases/remarks/139119.htm

To begin with, I believe that all nations – strong and weak alike – must adhere to standards that govern the use of force. I – like any head of state – reserve the right to act unilaterally if necessary to defend my nation. Nevertheless, I am convinced that adhering to standards strengthens those who do, and isolates – and weakens – those who don’t. …

Furthermore, America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our action can appear arbitrary, and undercut the legitimacy of future intervention – no matter how justified.

While the snips stand in stark contrast to what we now know he’s done, the rest of that speech seems mostly to promise more wars. The speech appalled me in 2009, but people told me I was crazy. Having read it again just now, I find I was not.

It started as a Sarkozy pipe dream. Apparently Gaddafi cancelled several large purchases from France recently (jets?, project in Libya; I think so, but I don’t remember for sure), and some expat was whispering sweet nothings into Sark’s ear (think Chalabi analogy). Plus Sark thought he needed some quick military victory to run for reelection on.

Certainly, dear Starbuck: here.
By the bye, my posting on Christie:
“Union leader compares NJ gov to Hitler at rally
If Christie is Adolf Hitler then he must have forgotten to take his laxatives…”was deleted from Politico. No historical sense of humor I guess…

Standing armies get used, that’s the simple truth. If we want to keep presidents from starting vanity wars we have to eliminate our professional military and reduce our forces to nothing more than what would actually defend our physical borders. “Strategic defense” is simply a euphemism to enable the military-industrial complex.

Ja and it”s all Glenn Greenwalds fault! – If he wouldn’t have told Obama over and over again that he is a ‘wimp’ and that he should stand up against the Bushies Obama wouldn’t have misunderstood him and changed into the biggest meaniest warrior America EVER had!
Now we haben den Salat!

“The White House unveiled its interpretation of the War Powers Resolution in a package about Libya it sent to Congress late Wednesday. On Thursday, the House speaker, John A. Boehner, Republican of Ohio, demanded to know whether the Office of Legal Counsel had agreed.

‘“The administration gave its opinion on the War Powers Resolution, but it didn’t answer the questions in my letter as to whether the Office of Legal Counsel agrees with them,” he said. “The White House says there are no hostilities taking place. Yet we’ve got drone attacks under way. We’re spending $10 million a day. We’re part of an effort to drop bombs on Qaddafi’s compounds. It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities.”’

Resulting in this response from that GWB-era Constitutional legal expert:

Internal rot continues apace. Yet, they find money for more wars. For an Ivy League “intellectual” Oily O certainly hasn’t read much history. But humans are, mostly, dumb sacks of shit. How you gonna maintain US infrastructure and civil society by draining the coffers for bankster bailouts, rich man tax cuts and endless war? I turn on Chris Matthews and he disses the grating left as he calls us. The elite don’t like to be reminded of their corruption. The American people don’t want to hear it either. Everyone is blissfully ignorant of the swirling shitstorm that’s about to hit us. No one will believe it until it is upon them.

What’s really extraordinary is that there are still devoted excusers and defenders. People who declared this or that bright line and then continually retreat as Obama strides over those lines. Does anyone still believe he “caves” or “gives in” or “gives away”? He does whatever he damn well pleases. Uriah Heep embodied.

My family are devoted Obots. You can’t point out anything about the Grifter in Thief. It was open season on Bush when he did the same autocratic shit. There are so many apologists. It makes sense to me now how Hilter and fascism in general gained a foothold in Europe after WW1. The minority of people like us who point out the painful truths won’t be listened to because mostly people are in serious denial about the state of affairs in the United States of Amnesia.

1. Let’s assume that President Obama really got conflicting legal advice rather than seeking legal opinions until he got the one he wanted. If he genuinely got differing legal views, and if he believes in a system of checks and balances and shared powers between the branches of government, he should have erred on the side of supporting the sharing of power. Now he comes across as just another power-hungry Executive, who doesn’t really believe in our Constitutional system.

2. Before he joined the Obama administration, Professor of Law Harold Koh was a critic of the concept of expansive presidential powers. Now that he is the State Department legal adviser, he defends the concept. Is that what people mean by being Koh-opted?

Everybody has read the relevant section of the War Powers Resolution that Harold Koh is referencing about supply, right? Just wondering. The reason he recommended cutting out the drones and responding with what they were doing to Congress that way is that the WPR specifically exempts the President from having to report to Congress if the role of the military in the hostilities is solely “supply, replacement, repair, or training.”

Instead of sitting around catcalling, you’d be better off reading all the relevant text.

BTW, in case anyone is wondering, I think he should have come for permission right at the beginning, actually before the intervention, and said so at the time. I just think people should argue based on facts, not blather.

It is with extraordinary sadness that I write you today requesting that you institute impeachment proceedings against Pres. Barack Obama. I voted for Pres. Obama. I desperately wanted to see him succeed but have found only disillusion and bitterness in the policies he has pursued. Now, in open defiance of our Constitution and the War Powers Act, he pursues illegal military action in Libya (and Yemen). Turning language upside down, in a manner George Orwell foresaw all too clearly, Pres. Obama, ignoring his own lawyers, denies that firing missiles from Predator drones constitutes “hostilities”. He is spitting in the face of Congress, the American people, and logic itself. If you let this pass, this egregious expansion of executive power, then we take one step closer to an unspeakable fascism.
I know I am asking the impossible of you. But you have shown courage before, whether in your call for re-instating the Glass-Steagall Act or your vote against reauthorizing the Patriot Act (thank you).The Libyan War is wildly unpopular except with Big Oil. The President’s actions are not only inexcusable, they are unpardonable. You took an oath of office to “preserve, protect, and defend the Constitution of the these United States” I call you to that oath today.

Obama is Bush all over again. When Bush wanted legal cover to torture people, he ignored the first opinions he received and eventually found the unethical lawyers who would tell him what he wanted to hear, no matter how illogical the explanation.

According to the lackeys who advised Obama, bombing a country does not constitute hostilities. Too bad these assholes weren’t around after Pearl Harbor. We could have been spared a war against Japan.

My explanation for why Obama decided not to follow his oath of office and charge members of the Bush administration with crimes has been proven correct: He had every intention for breaking the law the same way and didn’t want to establish precedents that could be used against him.

If the PM did this in the UK, he might well lose office and his seat in Parliament. Tony Blair went out of his way to pressure his AG into giving a legal opinion that gave him authority to make war on Iraq, because absent that authority, there would have been political, regulatory, and possibly legal consequences for him personally.

We now have a situation in America where a chief executive can safely ignore his top legal advisers’ opinions of the laws that give him authority to act, so long as he can find one attorney employed by the feds who will, “Yes, sir, you can do whatever you’d like.” In the law and politics familiar to the rest of the world, the propriety, constitutionality and common sense of that is not even a close call. America, in this as in all things, is exceptional.

Sadly, I don’t think this is about to explode at all. Nor do I think anyone inside the Beltway thinks this is particularly exceptional. If they did, they would no longer be invited to dinner and cocktails in Georgetown with the Serious people.

The trouble is, almost everyone in this fight has provable ulterior motives. The Republicans are on record as having opposed the 60 day limit as unconstitutional for 3 administrations (see Stephen Griffin at Balkinization) and have got themselves a reputation of espousing points of view just to be against Obama — they were on record as begging for intervention in Libya a few months ago. Koh is on record as having been against accrual of Presidential power and is now arguing against there being a need to go to Congress. The OLC and DoD are arguing there is a need, but the DoD and CIA were arguing against drones being expansions of other wars, now they are arguing that they constitute new “hostilities”. The left is on record chastising the U.S. for its support for dictators and is now arguing to the benefit of a dictator who is facing indictments in the ICC. The right is on record as having backed a much more aggressive intervention including boots on the ground and regime change and is now backing ending the conflict on procedural grounds.

OBTW, the conflict has produced 759,000 refugees but the news is covering 500 refugees on the Turko-Syrian border instead. Typical.

The situation is “explosive” because Obama has deliberately provoked a constitutional crisis with Congress by willfully refusing to seek Congressional approval for his war in Libya in violation of the Constitution and the War Powers Act. He makes the facially absurd argument that he is not required to seek congressional approval because US involvement in the air war in Libya constitutes neither hostilities nor war.

Several representatives in Congress, including Dennis Kucinich have sued him in federal court thereby involving the judiciary in this constitutional crisis.

The case likely will ultimately be decided by the Supreme Court. If it rules in Obama’s favor, he never will have to seek congressional approval for any military, intelligence agency, or mercenary action in any country in the world for any reason. He can start or enter into bombing or shooting wars in secret in Yemen, Colombia, Mexico, and even in the United States. If it rules against him, I predict he will ignore the ruling and formally anoint himself as El Duce I.

Neoliberals, and Obama is a neoliberal, hate democracy because it gets in the way of destroying the economy and looting all of the wealth. As long as there are elections, neoliberals have to play the kabuki game lying about their true intentions in order to win an election. It’s a lot easier for a totalitarian regime to destroy the economy and loot all the wealth. Therefore, that is what he is attempting to do.

It isn’t “his war”. He’s done something quite dumb, he’s papering it over by arguing that he isn’t involved in the conflict but in “supply.” The Republicans are playing to eviscerate. No imperial Obama is going to result, the elections will surely happen.

If he were becoming as powerful as you predict, he wouldn’t have to start anything in secret at all he could start it in the open.

This is a dumb move on his part, he’ll weaken himself, and he has screwed up more foreign policy.

Another provocative bit of data circulating on the net is a 2007 Democracy Now! interview of US Gen. Wesley Clark (Ret.). In it he says that about ten days after September 11, 2001, he was told by a general that the decision had been made to go to war with Iraq. Clark was surprised and asked why. “I don’t know!” was the response. “I guess they don’t know what else to do!” Later, the same general said they planned to take out seven countries in five years: Iraq, Syria, Lebanon, Libya, Somalia, Sudan and Iran.

What do these seven countries have in common? In the context of banking, one that sticks out is that none of them is listed among the 56 member banks of the Bank for International Settlements (BIS). That evidently puts them outside the long regulatory arm of the central bankers’ central bank in Switzerland.

This would explain Obama’s insistence on pursuing Libya — Not only do the bankers own the Senate, they own the White House.

It’s not fascism we should be concerned about, it’s the money/corporate government problem.

Jack Goldsmith does not find the Administration’s arguments persuasive. It’s very worthwhile reading. He thinks it does fall under the WPR.

NATO’s Supreme Allied Commander, the person “responsible to NATO’s highest military authority, the Military Committee, for the conduct of all NATO military operations,” is Admiral James G. Stavridis of the U.S. Navy… Other members of the U.S. Armed Forces presumably work up and down NATO’s chain of command. …

U.S. Armed Forces are doing most of the heavy lifting in the conflict short of pulling all the triggers, and the triggers that are being pulled by non-U.S. military forces are technically the responsibility of a member of the U.S. Armed Forces…

Section 8(c) [of the WPR ]provides: “For purposes of this joint resolution, the term ‘introduction of United States Armed Forces’ includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.” (emphasis added). This definition is relevant because is applies to the entire WPR and the WPR clock in Section 5(b) is tied to the introduction of U.S. Armed Forces into hostilities in Section 4(a)(1) and related reporting duties. On its face this language describes exactly what is going on: the U.S. is assigning members of the U.S. Armed Forces to command and participate in the movement of the regular military forces of France, Great Britain, and other nations that are engaged in hostilities in Libya. The fact that this command and participation happens via NATO seems irrelevant; the fact is that U.S. Armed Forces are helping those nations engage in military hostilities. Thus both the reality of the heavy U.S. participation in the NATO effort, and the WPR attribution rule, suggest that the NATO actions should be viewed as the actions of U.S. Armed Forces for purposes of the WPR. That would mean that the relevant bombing campaign for purposes of whether the U.S. is involved in “hostilities” is much broader and (because it involves NATO fighter jets and other forces, not just drones) more dangerous and more likely to lead to casualties than the drone attacks, considered in isolation.

He concludes,

There may be more to the administration’s argument than I can glean from the one-paragraph statement and the Savage story. But I doubt it, for if there were more, or something more persuasive, we would see a published legal opinion from the Department of Justice. [...]

Finally, I should note that while I think there are serious weaknesses in the Administration’s reasoning, I agree with Rick Pildes: “There is no clear legal answer. The president is taking a position, so the question is whether Congress accepts that position, or doesn’t accept that position and wants to insist that the operation can’t continue without affirmative authorization from Congress.” The WPR is an old statute filled with uncertainties. There is no definitive judicial construction of it and little likelihood of judicial review. The President is making an aggressive and narrowing interpretation of the statute. Whether the interpretation succeeds will depend entirely on Congress’s reaction. If Congress disagrees with the President’s construction, only it can vindicate its view. It has plenty of tools to do so, but using the tools requires responsibility and fortitude, which Congress usually lacks. We shall see.